Democratic Leadership Postpones FISA Vote; Immunity Already Codified
Here's why this is truly important, more important than I realized.
Telecoms are already exempt from having to second-guess the legality of a government request. From Feingold's Wednesday floor speech: "If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability."
Let's say this again, because this assertion by Feingold isn't a meme on this story.
If the federal government follows the law, and provides telecoms with "a court order or a certification stating that certain basic requirements have been met," then the telecoms cannot be sued for doing as requested. This has been the law for 30 years!
No wonder Verizon's lawyers advised the company not to participate! From Feingold's floor speech:
The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.
In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water...
Granting companies that allegedly cooperated with an illegal program this new form of automatic, retroactive immunity undermines the law that has been on the books for decades – a law that was designed to prevent exactly the type of actions that allegedly occurred here...
So the only thing we’d be encouraging by granting immunity here is cooperation with requests that violate the law. Mr. President, that’s exactly the kind of cooperation that FISA was supposed to prevent. (emphasis added)
To his credit, Feingold is concerned with more than the retroactive immunity, noting in his Wednesday floor speech that the new bill lets the government "legally collect all communications – every last one – between Americans here at home and the rest of the world." Moreover, the bill does not "effectively prohibit the practice of reverse targeting – namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating."
And there are no real "checks" on the executive branch. Feingold says that there are "no meaningful consequences if the government initiates surveillance using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful."
Prior coverage:
:: Congress Rewrites FISA
:: What is FISA?
::
What is the wiretapping issue?
:: What happened in August to make warrantless wiretaps temporarily legal?
:: Details On 12 Democrats Who Voted With Republican Senators On FISA In January 2008
- AP: "Sen. Russ Feingold, D-Wis., and more than a dozen other senators who oppose telecom immunity threw up procedural delays that threatened to force the Senate into a midnight or weekend session. The prospect of further delays was enough to cause Senate Majority Leader Harry Reid, D-Nev., to postpone the vote until after the weeklong July 4 vacation."
- AlterNet: "This happened after more than 13,000 calls to senators were made by TrueMajority.org supporters during the past 48 hours to urge them to oppose the measure. TrueMajority.org is the online arm of USAction."
- The Economist: "Regardless of how Mr Obama votes on the matter of immunity, though, the next president will have to deal with the increasingly complicated problem of striking a balance between privacy and the need for intelligence, particularly as it becomes ever more difficult to identify with any certainty where communications originate."
- Blogs @ Courant.com: "The move potentially gives time for those against the telecommunications immunity provision to lobby their members of Congress to change their positions. Though the strong bipartisan support in the House and Senate would suggest that effort may be fruitless."
